[Federal Register Volume 63, Number 129 (Tuesday, July 7, 1998)]
[Notices]
[Pages 36695-36696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17935]


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FEDERAL TRADE COMMISSION

[File No. 972-3071]


Nutrivida, Inc., et al.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--emobodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before September 8, 1998.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., NW, Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:
Jeffrey Klurfeld or Erika Wodinsky, San Francisco Regional Office, 
Federal Trade Commission, 901 Market Street, Suite 570, San Francisco, 
CA. 94103. (415) 356-5270.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of sixty (60) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for June 26, 1998), on the World Wide Web, at ``<a href="http://www.ftc.gov/os/
actions97.htm">http://www.ftc.gov/os/
actions97.htm</a>.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, Sixth Street and Pennsylvania Avenue, NW, 
Washington, DC 20580, either in person or by calling (202) 326-3627. 
Public comment is invited. Such comments or views will be considered by 
the Commission and will be available for inspection and copying at its 
principal office in accordance with Section 4.9(b)(6)(ii) of the 
Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an agreement to a proposed consent order from Nutrivida Inc. 
(``Nutrivida'') and Frank Huerta, an officer and director of the 
company.
    The proposed consent order has been placed on the public record for 
sixty (60) days for the receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and comments received and will decide whether it should 
withdraw from the agreement and take appropriate action or make final 
the agreement's proposed order.
    This matter concerns Spanish language television advertisements, 
including program length ``infomercials,'' for the proposed 
respondents' Cartilet shark cartilage capsules. The Commission's 
complaint alleges that the proposed respondents made unsubstantiated 
representations that: (1) Cartilet shark cartilage capsules are 
effective in the symptomatic relief, treatment, or cure of cancer; (2) 
Cartilet shark cartilage capsules are effective in the symptomatic 
relief or treatment of rheumatism, arthritis, diabetes, fibroids, 
bursitis, circulatory problems, and cysts; and (3) testimonial from a 
consumer who appears in the advertisements for Cartilet shark cartilage 
capsules reflects the typical or ordinary experience of members of the 
public who use the product. The Commission's complaint also alleges 
that the proposed respondents falsely represented that studies prove 
that Cartilet shark cartilage capsules are effective in the symptomatic 
relief or treatment of cancer, arthritis, and diabetes and that the 
proposed respondents misrepresented that their infomercial for the 
Cartilet shark cartilage capsules was an independent television program 
and not paid advertising.
    Paragraph I of the proposed order prohibits proposed respondents 
from representing that Nutrivida's Cartilet shark cartilage capsules or 
any other product are effective in the symptomatic relief, treatment, 
or cure of cancer or that Nutrivida's Cartilet shark cartilage capsules 
are effective in the symptomatic relief or treatment of rheumatism, 
arthritis, diabetes, fibroids, bursitis, circulatory problems, and 
cysts; unless, at the time the representation is made, respondents 
possess and rely upon competent and reliable scientific evidence that 
substantiates the representation.
    Paragraph II of the proposed order would prohibit for Cartilet 
shark cartilage capsules or any food, dietary supplement, or drug, 
representations about the health benefits, performance, or efficacy of 
such product unless, at the time the representation is made, 
respondents possess and rely upon competent and reliable scientific 
evidence that substantiates the representation.
    Paragraph III of the proposed order would prohibit for Cartilet 
shark cartilage capsules or any food, dietary supplement or drug, 
misrepresentations about the existence, contents, validity,

[[Page 36696]]

results, conclusions, or interpretations of any test, study, or 
research.
    Paragraph IV of the proposed order would prohibit for any food, 
dietary supplement or drug the representation that the experience 
represented by any user testimonial or endorsement of the product 
represents the typical or ordinary experience of members of the public 
who use the food, dietary supplement or drug, unless: at the time it is 
made, respondents possess and rely upon competent and reliable 
scientific evidence that substantiates the representation; or 
respondents disclose in the same language as the predominant language 
that is used in the advertisement, clearly and prominently, and in 
close proximity to the endorsement or testimonial, either (1) what the 
generally expected results would be for users of the food, dietary 
supplement or drug, or (2) the limited applicability of the endorser's 
experience to what consumers may generally expect to achieve, that is, 
the consumers should not expect to experience similar results.
    Part V and VI of the proposed order contain provisions permitting 
certain claims that are approved for labeling by the FDA, either under 
the Nutrition Labeling and Education Act, a tentative or final standard 
or under any new drug application approved by the FDA.
    Part VII of the proposed order would require proposed respondents 
to disclose ``THE PROGRAM YOU ARE WATCHING IS A PAID ADVERTISEMENT FOR 
[THE PRODUCT OR SERVICE]'' in television advertisements fifteen (15) 
minutes in length or longer, and to disclose a similar audio message in 
radio advertisements of fifteen (15) minutes in length or longer.
    Part VIII of the proposed order contains record keeping 
requirements for materials that substantiate, qualify, or contradict 
claims covered by the proposed order. Part IX of the proposed order 
requires distribution of a copy of the order to current and future 
officers and agents. Part X provides for Commission notification upon a 
change in the corporate respondent and Part XI requires Commission 
notification when the individual respondent changes his business or 
employment. Part XII requires the proposed respondents to keep and 
maintain all records demonstrating compliance with the terms and 
provisions of the order. Part XIII provides for the termination of the 
order after twenty years under certain circumstances.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify in any 
way their terms.

    By direction of the Commission.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 98-17935 Filed 7-6-98; 8:45 am]
BILLING CODE 6750-01-M